Kenya’s plan to sign a free trade deal with the United States is set for a long legal tussle after two lawyers challenged the controversial move at the East African Court of Justice. Christopher Ayieko and Emily Osiemo filed a petition at the regional court challenging the proposed Free Trade Agreement, which is seen as a violation of the East African Community (EAC) Treaty and its protocols.

“That Kenya, without due regard to the provisions of the EAC Treaty and the protocols for the establishment of the Customs Union and Common Market Protocol, to which it is a party, entered into, negotiated and/or expressed intention to negotiate a bilateral Free Trade Agreement with the United States of America in total violation of the Treaty and the protocols,” they said in their application, seen by The EastAfrican.

Recently, there have been widespread reports that Nairobi and Washington would seek to open an FTA in the coming months, a deal meant to replace the African Growth and Opportunities Act agreement. The latter is a trade preference program set up in 2000 that provides duty-free entry into the U.S. for almost all African products, from oil and agricultural goods to textiles, farm, and handicrafts. But the Act, which has been at the centre of U.S.-African engagement on trade and investment for two decades, expires in 2025 and Washington has said it will not renew the deal.

The planned agreement with Kenya, meanwhile, is a first for U.S. trade relations in sub-Saharan Africa and signifies a shift from multilateral trade deals, such as AGOA, to bilateral free trade agreements with individual countries. If signed, the deal would see Kenya open its borders for duty-free imports from Washington, while Nairobi would also get to export a range of goods tax-free the other way.

Regional trade officials criticized the deal after initial details of the maiden bilateral trade agreement surfaced last month, saying it is potentially in breach of protocols of the regional economic body as well as the soon-to-be-effected African continental free trade agreement, both of which Kenya is a signatory. Nairobi has denied the allegations.

Ayieko and Osiemo have demanded that the proposed FTA with the U.S. be declared illegal, null and void while the East African nation is also barred from importing wheat from American states. Washington shares around $1 billion in trade annually with Kenya, which is a net importer of wheat. Nairobi brings in two-thirds of its requirement to meet the annual demand of 900,000 tonnes, while it produces 350,000 tonnes locally.

Under AGOA, the U.S. recorded $40.9 billion in total goods traded with sub-Saharan African countries in 2018, goods exports totalled $15.8 billion, while imports were valued at $25.1 billion, putting the SSA trade surplus with America at around $9.3 billion for the year.

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